ஜஸ்டிஸ் மு.மு.இஸ்மாயில் அவர்களின் பேட்டி (1981)

Source : IndiaToday
Thanks to : Mohamed Ismail

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There was absolutely no question of anyone asking me to resign: Chief Justice M.M. Ismail

Justice Ismail went on five months' earned leave preparatory to premature retirement. The leave ended on July 8, and with no indication that the Union Government was reconsidering its order, Justice Ismail resigned. A hitherto placid 15-year career as judge ended in controversy.



M.M. Ismail: Reticent about airing his views


In January 1981, the Centre issued a notification transferring Chief Justice M.M. Ismail, 60, of the Madras High Court to the Kerala High Court, reportedly without the judge's consent. Justice Ismail went on five months' earned leave
preparatory to premature retirement. The leave ended on July 8, and with no indication that the Union Government was reconsidering its order, Justice Ismail resigned. A hitherto placid 15-year career as judge ended in controversy.

Justice Ismail's transfer, as also that of Patna High Court Chief Justice K.B.N. Singh to Madras and the recent circular of Union Law Minister Shiv Shankar to chief ministers asking them to get the consent of additional judges for transferas permanent judges to other courts have brought to the fore questions relating to the independence of the judiciary. The issues are now before the Supreme Court. For this reason Justice Ismail had been reticent about airing his viewsin public, although he is now reported to have written a lengthy letter to President Sanjiva Reddy though he has not revealed its contents. Last fortnight, Correspondent P.S. Vaidyanathan met Justice Ismail in Madras for an exclusive interview. Excerpts:

Q. It has been reported that instead of waiting for the Government to reconsider its transfer order, you precipitated matters by resigning.
A. I do not know on what basis such a report has been made. As early as January 21, I wrote to the President that on the expiry of the five month leave I would resign. I merely carried out that decision in the absence of anything happening during that period to make me change my stand.

Q. Did you request the President to reconsider his order?
A. Once the President has passed an order, there was no question of my requesting him to reconsider it.

Q. Were you asked to resign?
A. There was absolutely no question of anyone asking me to resign. The decision was entirely and exclusively mine. As to why I resigned, my conduct itself explains that and the public knows why.

Q. Why have you not challenged your transfer in a court of law?
A. I believe that a person holding such a high office as chief justice of a high court should not become a petitioner before a court with regard to his right to hold that office.

Q. Do you think that the real reasons for your transfer are the inquiries you conducted into abuse of power during the Emergency?
A. I'm fully satisfied that there was no political motive or vindictive attitude behind my transfer.

Q. Assuming that the Government has the power to transfer, do you think it can misuse such a power to victimise undesirable judges and thus jeopardise the independence of the judiciary?
A. You cannot say that as there is a possibility of abuse, the power itself should not be there. To err is human. It all depends on the facts and circumstances of each case. If in a particular case the power has been abused, the remedy, legal or otherwise, is available.

Q. In the light of the controversy arising from your transfer and the circular of the Union law minister to state chief ministers, do you think the independence of the judiciary is threatened?
A. Both the matters are pending before the Supreme Court, and the independence of the judiciary is one of the points raised in both cases. Naturally I cannot say anything now.

Q. Several cases in courts involve the Government vs the individual. Is it therefore fair to the citizens to have judges appointed by the Government as an interested party?
A. Your question assumes that by virtue of the fact that the Government appoints a judge, he is likely to decide in its favour. This is not a fair assumption. A government need not mean the political party in power: it is an impersonalagency. The moment a person becomes a judge he becomes impartial. Besides, he knows that even if the Government is not satisfied with his judgements, he cannot be removed except by impeachment.But there is scope for re-examining this question. When the Constitution was being framed, there was a proposal to have a sort of council of state to make recommendations to the President on the appointment of supreme court andhigh court judges, the auditor-general, the election commission, the ambassadors and the like. When the Constitution was finally framed, the proposal was dropped. I think it desirable to have some such machinery for the appointment and transfer of judges.

Q. What, in your opinion, are the reasons for the delay in disposal of cases by the courts?
A. One reason is the increased number of laws which touch the citizen's life at every point. Also, the reasons for litigation have changed. There was a time when a person would go to court only when he sincerely felt that his rights had been usurped. Now a person drags another to court to settle personal scores - part of the total moral degeneration in this country. The courts have no option but to entertain some of these cases if they fulfil all formalities. Unfortunately,the courts do not use their powers of preliminary scrutiny - to see whether a prima facie case has been established - because the judges do not want to become unpopular with the Bar by dismissing the cases at the admission stage itself. Thus the number of pending cases increases.

Q. What would you say are the reasons for the delay in filling up vacancies in the high courts?

A. I would not say there has been undue delay. The chief justice of the high court makes the recommendations to the chief minister, who, after consulting the governor, forwards them to the Union Law Ministry. The ministry then consults the chief justice of India and thereafter a decision is taken. To reduce delay, the chief justice of the high court also sends to the chief justice of India and the Law Ministry copies of his recommendations to the chief minister. If there is still delay, it may be because there is no agreement among these agencies on the person to be appointed.